Ligtenberg v. Dooley

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS denying 1 Plaintiff's Petition for Writ of Habeas Corpus. Case dismissed with prejudice (Written Opinion). Signed by Chief Judge John R. Tunheim on December 12, 2017. (HAZ)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 16-4398 (JRT/LIB)

JASON LIGTENBERG,
Plaintiff,
v.
BECKY DOOLEY, Warden for the Moose
Lake Correctional Facility

ORDER ADOPTING REPORT
AND RECOMMENDATION OF
MAGISTRATE JUDGE

Defendant.
Jason Ligtenberg, #224559, MCF-Moose Lake, 1000 Lakeshore Drive,
Moose Lake, MN 55767-9449, pro se plaintiff.
James P. Spencer, Olmsted County Attorney, 151 Fourth Street Southeast,
Rochester, MN 55904, for defendant.
Plaintiff Jason Ligtenberg, an inmate at the Moose Lake Correctional Facility, has
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 17,
2017, Magistrate Judge Leo I. Brisbois recommended that the petition be denied and the
action dismissed. After an independent review of the files, records, and proceedings, the
Court will conclude that Ligtenberg’s petition is untimely and will, therefore, dismiss the
action.
BACKGROUND
In 2007, Ligtenberg was found guilty of first-degree and second-degree criminal
sexual conduct. (Pet. at 3, Dec. 29, 2016, Docket No. 1.) The Minnesota Court of
Appeals affirmed Ligtenberg’s conviction. State v. Ligtenberg, No. A08-0073, 2009 WL
1677852 (Minn. Ct. App. June 16, 2009).

The Minnesota Supreme Court denied

Ligtenberg’s writ of certiorari on August 26, 2009. (Pet. at 5.)
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Ligtenberg subsequently filed two petitions for post-conviction relief and a habeas
corpus petition in state court. 1 The state district court denied the first petition on October
10, 2011. See Ligtenberg v. State, No. A11-2207, 2012 WL 3263879, at *1 (Minn. Ct.
App. Aug. 13, 2012), review denied (Minn. Oct. 24, 2012). The Minnesota Court of
Appeals affirmed the denial, see id., and the Minnesota Supreme Court denied review on
October 24, 2012. (Pet. at 5.) From October 24, 2012, to November 5, 2014, there were
no pending motions in state court related to Ligtenberg’s conviction. (Id.)
Ligtenberg filed a habeas corpus petition with the Minnesota Supreme Court on
November 5, 2014.

(Id.)

The Minnesota Supreme Court denied his petition on

December 22, 2014. (Id.)
Ligtenberg filed his second petition for post-conviction relief in June 2015. The
state district court summarily denied the petition on the grounds that Ligtenberg’s claims
were untimely, could have been raised previously, and had previously been addressed on
the merits. See Ligtenberg v. State, No. A15-1704, 2016 WL 3223207, at *2-*4 (Minn.
Ct. App. June 13, 2016), review denied (Aug. 23, 2016). The Minnesota Court of
Appeals affirmed the summary denial, see id., and the Minnesota Supreme Court denied
review on August 23, 2016. (Pet. at 5.)
Ligtenberg petitioned the Court for habeas corpus relief on December 23, 2016.
He alleges that he was denied a right to a fair trial because (1) he did not have access
1

As the Magistrate Judge noted, Ligtenberg filed a previous petition for post-conviction
relief before his direct appeal had concluded. (R. & R. at 2 n.1, Feb. 17, 2017, Docket No. 8.)
That petition for post-conviction relief is not relevant to the timeliness of Ligtenberg’s current
habeas corpus petition.

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exculpatory medical records; (2) notice and venue were improper with respect to two
offenses that occurred in Ramsey County; and (3) his appellate counsel was ineffective in
failing to discover the notice and venue issues. (Pl.’s Mem. of Law at 11-14, Dec. 29,
2016, Docket No. 2.)

Ligtenberg further claims that Minnesota’s post-conviction

procedures violate the Due Process Clause and the Equal Protection Clause. (Id. at 1427.)

Magistrate Judge Brisbois recommended that the Court dismiss Ligtenberg’s

petition as time-barred. (R. & R. at 8, Feb. 17, 2017, Docket 8.) Ligtenberg filed an
objection to the report and recommendation. (Objs. to R. & R., Mar. 9, 2017, Docket
11.)
ANALYSIS
I.

STANDARD OF REVIEW
Upon the filing of a report and recommendation by a magistrate judge, a party

may “serve and file specific written objections to the proposed findings and
recommendations.” Fed. R. Civ. P. 72(b)(2); accord D. Minn. LR 72.2(b)(1). “The
district judge must determine de novo any part of the magistrate judge’s disposition that
has been properly objected to.” Fed. R. Civ. P. 72(b)(3); accord D. Minn. LR 72.2(b)(3).
The Court construes Ligtenberg’s pro se pleadings liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007).

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II.

STATUTE OF LIMITATIONS
A one-year statute of limitations applies to habeas corpus petitions brought

pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). The statute of
limitations runs from the latest of
(A)

the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;

(B)

the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;

(C)

the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or

(D)

the date on which the factual predicate of the claim
or claims presented could have been discovered
through the exercise of due diligence.

Id., (A)–(D) (emphasis added).

Ligtenberg has not alleged a violation of a newly

recognized constitutional right or a state-created impediment to his habeas corpus
petition.

The petition’s timeliness therefore depends upon (1) the date on which

Ligtenberg’s judgment became final and (20 the dates on which he could have discovered
the factual predicates of his claims.
The limitations period is tolled whenever a properly filed application for state
post-conviction relief is pending, 28 U.S.C. § 2244(d)(2), but an application for post-4-

conviction relief does not restart the limitations period. See King v. Hobbs, 666 F.3d
1132, 1136 (8th Cir. 2012) (noting that the limitations period “resumed” after the
conclusion of state proceedings).
A. Section 224(d)(1)(A)
Under Section 2244(d)(1)(A), the underlying criminal conviction that results in the
petitioner’s custody provides the relevant “judgment.” See Martin v. Fayram, 849 F.3d
691, 696 (8th Cir. 2017). That judgment becomes final when the defendant does not
petition the United States Supreme Court for a writ of certiorari within ninety days of
exhausting state appellate court review. See id. at 697.
Ligtenberg’s judgment became final on November 24, 2009, ninety days after the
Minnesota Supreme Court declined to hear his criminal appeal. Absent the filing of his
post-conviction petitions, Ligtenberg had until November 24, 2010 to file his habeas
corpus petition. Although the filing of an application for post-conviction relief tolls the
statute of limitations, there was still a two-year period between October 24, 2012 and
November 4, 2014 in which there was no motion pending in state court.

Because

Ligtenberg did not file his habeas corpus petition within one year of the final judgment,
the petition is time-barred under Section 2244(d)(2).
B. Section 2244(d)(1)(D)
If Section 2244(d)(1)(D) applies to this case, Ligtenberg’s petition is still timebarred. Under Section 224(d)(1)(D), the statute of limitations runs from the “the date on
which the factual predicate of the claim or claims presented could have been discovered

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through the exercise of due diligence.” Ligtenberg’s claims involve the following factual
predicates: (1) the fact that Ligtenberg did not have access to medical records he contends
are exculpatory; (2) the fact that Ligtenberg received improper notice, and the case was
venued in the wrong state district court; (3) the failure of his appellate counsel to discover
the notice and venue issues; and (4) the constitutionality of Minnesota’s post-conviction
relief procedures;. (See Pl.’s Mem. of Law at 8-9, 14.)
Ligtenberg filed a motion with the state district court on September 17, 2009,
seeking release of the medical records. (Pet. at 5.) In denying his first post-conviction
petition, the Minnesota Court of Appeals noted, “Lightenberg could have pursued
discovery of the victim’s medical records before trial with reasonable diligence.”
Ligtenberg, 2012 WL 3263879, at *3. At the latest, Ligtenberg must have been aware of
that he did not have access to medical records when he filed the motion with the state
district court on September 17, 2009. The Minnesota Supreme Court denied Ligtenberg’s
post-conviction motion challenging the state district court’s decision on October 24,
2012, and Ligtenberg did not file another motion for two years. Ligtenberg, therefore,
did not file a habeas corpus petition within a year of discovering that he did not have
access to the victim’s medical records.
The factual predicates for Ligtenberg’s venue and ineffective-assistance-ofcounsel claims were known to him by the time he filed his first petition for postconviction relief. Ligtenberg, 2012 WL 3263879, at *2 (analyzing these issues on a postconviction appeal). Ligtenberg discovered the factual predicates for these claims before

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October 24, 2012, and did not file a habeas corpus petition within a year of discovering
the venue and the ineffective-assistance-of-counsel claims.
Ligtenberg should have discovered any alleged constitutional defects in
Minnesota’s post-conviction procedures following the complete adjudication of his first
post-conviction petition. By this point Ligtenberg had undergone the post-conviction
procedures and through reasonable diligence could have discovered their alleged
unconstitutionality. Even assuming he was not aware of these alleged deficiencies until
the Minnesota Supreme Court denied review of that petition on October 24, 2012, more
than one year passed during which no state proceedings were pending.
Because Ligtenberg could have discovered the factual predicates underlying each
of his claims through the exercise of due diligence more than one year before he filed his
habeas corpus petition, the petition is untimely. 28 U.S.C. § 2244(d)(1)(D).
III.

CERTIFICATE OF APPEALABILITY

Under Section 2254, a habeas corpus petitioner may not appeal an adverse ruling
unless granted a certificate of appealability (“COA”). See 28 U.S.C.§ 2253(c)(1). A
court cannot grant a COA unless the petitioner has “made a substantial showing of the
denial of a constitutional right.” Id. § 2253(c)(2). When a district court dismisses a
petition on procedural grounds, the petitioner must also show that reasonable jurists could
find the district court’s procedural ruling debatable. Slack v. McDaniel, 529 U.S. 473,
484 (2000). Because Ligtenberg has not made such a showing, the Court need not reach
his constitutional claims. See id. at 485. It is highly unlikely that the Court of Appeals or

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any other court would disagree that Ligtenberg’s claims are time-barred. The Court
therefore will not issue a COA.
ORDER
Based on the foregoing, and all files, records, and proceedings herein, the Court
OVERRULES Plaintiffs’ Objections [Docket. No. 11] and ADOPTS the Report and
Recommendation of the Magistrate Judge [Docket No. 8].
Accordingly, IT IS HEREBY ORDERED that:
1.

Plaintiff’s Petition for a Writ of Habeas Corpus [Docket No. 1] is
DENIED.

2.

The action is DISMISSED WITH PREJUDICE; and

3.

No certificate of appealability is granted.

LET JUDGMENT BE ENTERED ACCORDINGLY

DATED: December 12, 2017
at Minneapolis, Minnesota.

_______s/John R. Tunheim
JOHN R. TUNHEIM
Chief Judge
United States District Court

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